[Federal Register: April 19, 2004 (Volume 69, Number 75)]
[Rules and Regulations]
[Page 20826-20828]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ap04-13]
[[Page 20826]]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
Alaska State Plan; Approval of Plan Supplement; Level of Federal
Enforcement
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Final rule.
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SUMMARY: This document gives notice of OSHA's approval of a change to
the Alaska occupational safety and health state plan excluding coverage
from the plan of Alaska Native health care facilities that are
federally owned and contractor operated, and of certain military
installations. The Native health care facilities include those owned by
the U.S. Department of the Interior, Indian Health Service; the U.S.
Department of Defense; or the U.S. Department of Commerce, National
Oceanic and Atmospheric Administration; and operated by Tribal
organizations under contract with the Indian Health Service. The
military installations include four missile defense facilities and four
U.S. Coast Guard facilities. Accordingly, federal OSHA will exercise
enforcement authority over these facilities in Alaska. The State
retains jurisdiction over construction and contract maintenance at
these Native health care facilities. OSHA is amending its description
of the State plan to reflect this change in the level of Federal
enforcement in the State.
EFFECTIVE DATE: April 19, 2004.
FOR FURTHER INFORMATION CONTACT: Paula O. White, Director, Cooperative
and State Programs, Occupational Safety and Health Administration, U.S.
Department of Labor, Room N3700, 200 Constitution Avenue NW.,
Washington, DC 20210, Telephone: (202) 693-2200.
SUPPLEMENTARY INFORMATION:
A. Background
Section 18 of the Occupational Safety and Health Act of 1970 (the
Act), 29 U.S.C. 667, provides that states which wish to assume
responsibility for developing and enforcing their own occupational
safety and health standards may do so by submitting, and obtaining
federal approval of, a state plan. State plan approval occurs in stages
which include initial approval under section 18(c) of the Act and,
ultimately, final approval under section 18(e).
The Alaska state plan was initially approved on July 31, 1973, with
notice published August 10, 1973 (38 FR 21630). On September 28, 1984,
OSHA announced the final approval of the Alaska state plan pursuant to
section 8(e) and amended Subpart R of 29 CFR Part 1952 to reflect the
Assistant Secretary's decision (49 FR 38252). As a result, federal OSHA
relinquished its authority with regard to occupational safety and
health issues covered by the Alaska plan. Federal OSHA retained its
authority over safety and health in private sector maritime employment;
marine-related private sector employment at worksites on the navigable
waters, such as floating seafood processing plants, marine
construction, employments on artificial islands and offshore oil
drilling platforms, and diving operations afloat; private sector
worksites located within the Annette Islands Reserve of the Metlakatla
Indian Community and the Denali (Mt. McKinley) National Park; federal
government agencies; and the U.S. Postal Service.
Alaska Native Health Care Facilities
In September 2000, Alaska Occupational Safety and Health (AKOSH)
representatives were denied entry to conduct an inspection of the
Kanakanak Hospital operated by the Bristol Bay Area Health Corporation
at Kanakanak, Alaska. The Alaska Attorney General determined that since
the hospital is owned by the federal government and operated under
contract with the Indian Health Service, AKOSH would not have
jurisdictional authority to pursue compulsory process. AKOSH has since
determined that there are a number of similarly operated health
facilities owned by the federal government over which AKOSH does not
have enforcement authority. The OSH Act does not provide specific
authority for state plans to include within their jurisdiction those
federal instrumentalities which are government owned but contractor
operated (GOCO) facilities. (See Goodyear Atomic Corp. v. Miller, 486
U.S. 174 (1988).) Accordingly, these facilities are deemed to be an
issue no longer covered by the Alaska state plan. On July 10, 2001,
AKOSH signed a memorandum of understanding (MOU) with federal OSHA
agreeing to relinquish jurisdiction over Native health care facilities
in Alaska that are federally owned and contractor operated. These
include all Native health care facilities owned by the U.S. Department
of the Interior, Indian Health Service; the U.S. Department of Defense;
or the U.S. Department of Commerce, National Oceanic and Atmospheric
Administration; and operated by Tribal organizations under contract
with the Indian Health Service. Federal OSHA is assuming jurisdiction
and enforcement responsibility for these facilities.
Construction and contract maintenance activities at these
facilities will remain under the jurisdiction of the State of Alaska,
AKOSH, in accordance with a determination by the Alaska Attorney
General that jurisdiction over such activities is permissible under
state law. However, the Metlakatla Indian Community, Annette Island
(Health) Service Unit, remains entirely under federal OSHA jurisdiction
pursuant to an earlier modification to the state plan. (See 49 FR
4469.)
AKOSH retains jurisdiction over other Native health care facilities
that are leased or owned by Tribal organizations, or city, county and
state municipalities, again with the exception of the Metlakatla Indian
Community. AKOSH will also provide consultation and training services
at all Native health care facilities, upon request.
Military Installations
On February 11, 2004, the Alaska Commissioner of Labor requested
that federal OSHA assume jurisdictional responsibilities for private
contractors at certain military installations. Alaska noted that it was
infeasible to obtain the security clearances necessary for highly
classified and/or restricted areas at these military bases, and that
private contractor compliance ultimately required negotiation with
controlling federal agencies on hazard abatement and other compliance
issues. Alaska requested that OSHA assume responsibility for conducting
safety and health inspections of the operations of private contractors
within the borders and confines of four missile defense facilities and
four U.S. Coast Guard facilities: Cape Lisburne Long Range Missile Base
(U.S. Air Force), Point Lay Short Range Missile Base (U.S. Air Force),
Eareckson Air Station (Shemya Island--Department of Defense), Fort
Greeley Missile Defense (Delta Junction--U.S. Army), the U.S. Coast
Guard's Integrated Support Commands in Kodiak and Ketchikan, the U.S.
Coast Guard Air Station in Sitka, and the U.S. Coast Guard 17th
District Command in Juneau.
Accordingly, these establishments are deemed to be issues no longer
covered by the Alaska state plan. Federal OSHA is assuming jurisdiction
and enforcement responsibility for these facilities. AKOSH retains
jurisdiction over all other military installations and will conduct
safety and health
[[Page 20827]]
inspections of private contractors operating on military bases not
listed above.
Changes to Description of State Plan
OSHA is amending its description of the state plan to reflect this
change in the level of federal enforcement. In addition, 29 CFR
1952.243 and 1952.244 are reorganized into subparagraphs for
readability.
B. Location of Supplement for Inspection and Copying
A copy of the Memorandum of Understanding referenced in this notice
and related correspondence may be obtained from: Office of State
Programs, Directorate of Cooperative and State Programs, Occupational
Safety and Health Administration, Room N3700, 200 Constitution Avenue,
NW, Washington, DC 20210, (202) 693-2244, fax (202) 693-1671; Office of
the Regional Administrator, Occupational Safety and Health
Administration, 1111 Third Avenue, Suite 715, Seattle, Washington,
98101-3212, (206) 553-5930, fax (206) 553-6499; and the State of
Alaska, Department of Labor and Workforce Development, 1111 W. 8th
Street, Room 306, Juneau, Alaska 99802-1149, (907) 465-4855, fax (907)
465-6012. Other information about the Alaska state plan is posted on
the State's Web site at http://www.labor.state.ak.us/lss/ For an electronic copy of this notice, see OSHA's Web site at http://.
http://www.osha.gov.
C. Public Participation
Under 29 CFR 1953.3(e), the Assistant Secretary may prescribe
alternative procedures to expedite the review process or for other good
cause which may be consistent with applicable laws. Alaska's
determination that certain Native health care operations and certain
military installations are no longer issues covered under the State's
plan is already in effect per agreement with OSHA as a result of the
State's inability to exercise legal authority. Additionally, under the
terms of Alaska's Final Approval determination, which was issued in
1984 after an opportunity for public comment, federal standards and
enforcement apply to safety or health issues that the State is unable
to cover under its state plan. Accordingly, OSHA finds that further
public participation is unnecessary, and this notice of approval is
effective upon publication in the Federal Register.
List of Subjects in 29 CFR Part 1952
Indians, Intergovernmental relations, Law enforcement, Military
installations, Occupational safety and health.
Signed at Washington, DC, this 6th day of April, 2004.
John L. Henshaw,
Assistant Secretary.
0
For the reasons set out in the preamble, 29 CFR Part 1952 is amended as
set forth below:
PART 1952--[AMENDED]
0
1. Revise the authority citation for Part 1952 to read as follows:
Authority: Sec. 18 of the Occupational Safety and Health Act of
1970, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902; Secretary of
Labor's Order No. 5-2002 (67 FR 65007, October 22, 2002).
0
2. Amend Sec. 1952.243 by revising paragraph (b) to read as follows:
Sec. 1952.243 Final approval determination.
* * * * *
(b) Except as otherwise noted, the plan which has received final
approval covers all activities of employers and all places of
employment in Alaska. The plan does not cover:
(1) Private sector maritime employment;
(2) Worksites located on the navigable waters, including artificial
islands;
(3) Native health care facilities that are Federally owned and
contractor operated, including those owned by the U.S. Department of
the Interior--Indian Health Service, the U.S. Department of Defense, or
the U.S. Department of Commerce--National Oceanic and Atmospheric
Administration, and operated by Tribal organizations under contract
with the Indian Health Service;
(4) Operations of private sector employers within the Metlakatla
Indian Community on the Annette Islands;
(5) Operations of private sector employers within Denali (Mount
McKinley) National Park;
(6) Operations of private contractors at Cape Lisburne Long Range
Missile Base, Point Lay Short Range Missile Base, Eareckson Air Station
on Shemya Island, Fort Greeley Missile Defense in Delta Junction, the
U.S. Coast Guard Integrated Support Commands in Kodiak and Ketchikan,
the U.S. Coast Guard Air Station in Sitka, and the U.S. Coast Guard
17th District Command in Juneau;
(7) Federal government employers and employees;
(8) The U.S. Postal Service (USPS), including USPS employees, and
contract employees and contractor-operated facilities engaged in USPS
mail operations; or
(9) The enforcement of the field sanitation standard, 29 CFR
1928.110, and the enforcement of the temporary labor camps standard, 29
CFR 1910.142, with respect to any agricultural establishment where
employees are engaged in ``agricultural employment'' within the meaning
of the Migrant and Seasonal Agricultural Worker Protection Act, 29
U.S.C. 1802(3), regardless of the number of employees, including
employees engaged in hand packing of produce into containers, whether
done on the ground, on a moving machine, or in a temporary packing
shed, except that Alaska retains enforcement responsibility over
agricultural temporary labor camps for employees engaged in egg,
poultry, or red meat production, or the post-harvest processing of
agricultural or horticultural commodities.
* * * * *
0
3. Amend Sec. 1952.244 by revising paragraph (b) to read as follows:
Sec. 1952.244 Level of Federal enforcement.
* * * * *
(b) In accordance with section 18(e), final approval relinquishes
Federal OSHA authority only with regard to occupational safety and
health issues covered by the Alaska plan. OSHA retains full authority
over issues which are not subject to State enforcement under the plan.
(1) Federal OSHA retains its authority relative to safety and
health in private sector maritime activities and will continue to
enforce all provisions of the Act, rules or orders, and all Federal
standards, current or future, specifically directed to maritime
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine
terminals; Part 1918, longshoring; Part 1919, gear certification) as
well as provisions of general industry and construction standards (29
CFR Parts 1910 and 1926) appropriate to hazards found in these
employments.
(2) Federal jurisdiction will be retained over marine-related
private sector employment at worksites on the navigable waters, such as
floating seafood processing plants, marine construction, employments on
artificial islands, and diving operations in accordance with section
4(b)(1) of the Act.
(3) Federal jurisdiction is also retained and exercised by the
Employment Standards Administration, U.S. Department of Labor
(Secretary's Order 5-96, December 27, 1996) with respect to the field
sanitation standard, 29 CFR 1928.110, and the enforcement
[[Page 20828]]
of the temporary labor camps standard, 29 CFR 1910.142, in agriculture,
as described in Sec. 1952.243(b).
(4) Federal jurisdiction is also retained for Native health care
facilities that are Federally owned and contractor operated, including
those owned by the U.S. Department of the Interior, Indian Health
Service; the U.S. Department of Defense; or the U.S. Department of
Commerce, National Oceanic and Atmospheric Administration; and operated
by Tribal organizations under contract with the Indian Health Service.
However, the State retains jurisdiction over construction and contract
maintenance activities at these facilities with the exception of the
Metlakatla Indian Community, Annette Island Service Unit, which is
entirely under Federal jurisdiction. (The State also retains
jurisdiction over Native health care facilities that are leased or
owned by Tribal organizations, except for the Metlakatla Indian
Community.)
(5) Federal jurisdiction is also retained with regard to the
operations of private contractors at Cape Lisburne Long Range Missile
Base, Point Lay Short Range Missile Base, Eareckson Air Station on
Shemya Island, Fort Greeley Missile Defense in Delta Junction, the U.S.
Coast Guard Integrated Support Commands in Kodiak and Ketchikan, the
U.S. Coast Guard Air Station in Sitka, and the U.S. Coast Guard 17th
District Command in Juneau.
(6) Federal jurisdiction is also retained for private sector
worksites located within the Annette Islands Reserve of the Metlakatla
Indian Community, for private sector worksites located within the
Denali (Mount McKinley) National Park, for Federal government
employers, and for the U.S. Portal Service (USPS), including USPS
employees, and contract employees and contractor-operated facilities
engaged in USPS mail operations.
* * * * *
[FR Doc. 04-8780 Filed 4-16-04; 8:45 am]
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